Q. What types of institutions are in place to deal with the proliferation of drones?

Currently, the MTCR controls the transfer of advanced drones. As mentioned earlier, the regime was created in 1987 as a nuclear nonproliferation arrangement designed to limit the spread of nuclear weapons delivery vehicles. The organization has questionable relevance because of the membership composition and rules. While the United States has generally adhered to the MTCR, the regime excludes the world's other key drone producers, including Israel, China, and Iran.

The discussion of drone proliferation should be taken in the context of which drone-producing countries are part of the MTCR and thus bound by MTCR guidelines. Members have all agreed that they will engage in consultation with other MTCR members before exporting anything on a list of items that has been deemed sensitive. Specifically, the organization has a strong presumption of denial when it comes to Category I drones, which the organization states should be exported rarely and conducted on a rare, case-by-case basis. Category II drones are thought to be of less concern from the standpoint of proliferation. "Other" refers to even less-sensitive drone technology that falls outside the purview of the MTCR, either technology demonstrators such as the nEUROn, made by a European consortium, or smaller drones that are considered fully exportable.

Table 3.1 is based on data collected by Lynn Davis and his colleagues from the Rand Corporation and categorizes the states thought to be developing Category I and II systems on the basis of their MTCR membership. The category that represents the greatest proliferation concern is the Category I-Not MTCR box, which includes China, India, Iran, Taiwan, and UAE.36 In

Table 3.1 Countries’ Drone Acquisition (Current and Planned) by MTCR Membership

Category I

Category II

Other

MTCR Member

Russia Turkey United States

South

Africa

France

Germany

Greece

Italy

South Korea

Spain

Sweden

United Kingdom

Not MTCR Member

China

India

Iran

Taiwan

UAE

Israel

Pakistan

Lebanon North Korea Switzerland Tunisia

Source: Davis et al. 2014, Armed and Dangerous, 9.

some senses, that category is somewhat misleading since it includes countries such as China that have already developed Category I systems, as well as countries such as India, which are in the initial stages of developing a stealthy unmanned combat aerial vehicle called the Aura.37 Nonetheless, it illustrates the concern that many countries capable of producing this technology fall outside the MTCR altogether.

Even Category II systems are controlled by the MTCR for a reason, which is that they are seen as potentially playing a negative role in delivering weapons, their 186-mile range being long enough to inflict harm. As the table shows, a number of countries are capable of producing Category II systems but are not in the MTCR. In short, one concern with the MTCR is that it is a regulating agency that does not incorporate all of the countries producing drones, implying a major flaw in its institutional design. Even if it is not a legally binding treaty, which also raises a potential concern, the states that are members have generally adhered to the MTCR's guidelines, with countries such as the United States exporting Category I drones on a restrictive basis, denying requests from countries such as Pakistan, Turkey, and the UAE for such systems.38

Another proliferation concern having to do with the MTCR arises from the arbitrary threshold of its guidelines, which can present problems of false negatives, the technologies that are less restricted under the MTCR but could present proliferation problems, and false positives, those that are restricted that actually otherwise might have salutary impacts on regional security. First, with technology becoming lighter, a drone that is currently a Category I system could easily be converted into a Category II system that is less restricted by export controls. For example, General Atomics, which makes the Predator, has been flooded with international requests for the drone but has been held back by export restrictions. Instead, it created a version of the Predator that would more easily circumvent those restrictions, lowering the payload in part by integrating lower- end sensors and sidestepping weaponization. To be sure, this particular exportable version has end-user agreements that prevent weaponization or transfer to third parties, but studies of end-user certification in the context of international arms markets point to a number of problems when it comes to international verification—for example, forged certificates and increasingly global markets that challenge the traditional control systems.39 Being able to sidestep the somewhat arbitrary Category I threshold and more freely export advanced drones could therefore have the effect of increasing the number of such drones in the international market and putting those drones in the hands of states that might not observe the end-user prohibitions against weaponization.

Second, an inverse problem associated with the MTCR is one that might be referred to as "false positives," which would include systems whose exports are prohibited under the MTCR but do not necessarily create security problems as a result of their proliferation. Global Hawk could fit under this heading. On the one hand, as one Air Force general cautioned,

Global Hawk could be seen as "ultra, ultra-long range cruise missiles."40 It is in this spirit that talks with Japan about the proposed sale of Global Hawks had been sensitive. On the other hand, the Global Hawk's surveillance capability could actually create much-needed transparency in regions such as East Asia, where tactical miscalculations resulting from inadequate data can result in escalating conflict. It was with these ambitions in mind that the United States arranged a sale of a European variant of the Global Hawk, the Euro Hawk, to Germany and negotiated a proposed sale of Global Hawks to South Korea, which had required that South Korea reduce its commitments to the MTCR. Jane's Defense Weekly reported that the 2012 deal had "relaxed" South Korea's commitments to the MTCR.41

As this discussion implies, the MTCR is an imperfect proliferation measure for a technology that has evolved in ways that were not envisioned at its inception in 1987. In light of the existence of drone producers outside of the MTCR, some scholars have proposed a drone proliferation organization that would address the regulation gap between member countries in the MTCR and those outside of its jurisdiction. Philosopher Allen Buchanan and political scientist Robert Keohane have advocated an informal regime that promotes accountability in drone strikes. Before an attack takes place they propose "requiring that states specify appropriate procedures in their decision-making process for all drone strikes," and, after a drone attack, that states must make "public justifications for specific strikes."42 Such a system acknowledges that strikes via drone are qualitatively different from F-16 strikes in that they tend to be able to be conducted covertly and therefore are beyond the traditional umbrella of international law. The regime would bring these strikes out of the covert world and require more transparency in the targeting process.

Other proposals acknowledge and seek to remedy deficiencies in the MTCR's regulations, particularly, that the countries seeking to export or import drones are often outside the purview of the MTCR, that the export thresholds are arbitrary and easily sidestepped, and that many states outside the MTCR stand to gain financially from drone exports, including China and Israel. One idea from scholars at the Council on Foreign Relations is to create a new and enhanced drone regime that includes the states outside the MTCR and seeks to regulate the exports of armed- capable drones. Its membership would go beyond the current MTCR, which could be tricky because it would bring in countries that are developing or exporting Category I systems and otherwise benefit from those exports. To generate support, the US would have to make some concessions, for example, being more forthcoming about how it uses drones and exchange its transparency for broader buy-in of the enhanced drone regime.43

In addition to the MTCR, the United Nations currently has in place two Special Rapporteurs—one on counterterrorism and human rights and another on extrajudicial, summary, and arbitrary executions—who are meant to monitor and report on the use of drones. Both act as watchdogs of how drones are used in conflict. The former, for example, is charged with ensuring that the promotion and protection of human rights and fundamental freedoms are not violated during counterterrorism activities, with a mandate established by the Commission on Human Rights in 2005. Ben Emmerson assumed the post of Special Rapporteur in 2011 and in 2014 reported on reductions in the rate of civilian casualties in Pakistan. Yet he also acknowledged that that between 24 and 71 civilians were killed in Yemen between 2009 and 2013 and concurred that the European Union's condemnation of strikes outside a declared war raised serious concerns about the legality of these strikes under international law. Finally, he drew attention to the continuing opaqueness in terms of the United States' specific strikes, specifically, which civilian casualties are sustained, how and why—even in the context of ongoing conflicts, such as those in Afghanistan.44

As Emmerson's report indicated, the findings are intended to be read in tandem with that of the investigation of the Special

Rapporteur on extrajudicial, summary or arbitrary executions, whose 2013 report notes that drones themselves are not illegal but "can make it easier for States to deploy deadly and targeted force on the territories of other States." The report added that the broad justifications deployed to legitimize drone strikes run the risk of undermining international legal limits to the use of force. The report also foreshadows the future landscape, which consists of a proliferation of multiple drones by states and nonstates against a backdrop of more actors using force less discriminately. Since the use of the technology means no casualties by the actor that uses drones, the international community should become more attentive in scrutinizing states' drone strikes and providing clarity on the conditions under which self-defense is being invoked, including more transparency on targeting, civilian impact, and violations prompting the use of drone strikes.45

Other than through multilateral institutions, the other way to affect the future acquisition or use of armed drones is through state practice. The state that has been most involved in drone technology has been the United States; this gives it the potential to help establish legal precedents, not just in terms of the sale of armed drones but also in how drones are used in conflict. To this end, the United States has been urged by critics to clarify certain aspects of its drone program, including what it defines as "imminence," the actual conditions that it considers capture not to be feasible—meaning that killing is warranted—and criteria for targeting.46

Although the preceding discussion emphasized the international regulation of armed drones, the prospect of ubiquity of even smaller-scale drones that are largely unregulated presents potentially enormous security threats. As the January 2015 landing of a drone on the White House lawn served to illustrate, these devices are seemingly boundless, and certainly not bound by the same impediments—such as a fence—that ground threats would be. The US Department of Homeland Security has investigated how smaller drones could be used to catastrophic effect. As they concluded, a standard civilian drone is able to carry three pounds of explosives, which would certainly be disruptive.47 Along similar lines, a drone carrying six pounds of methamphetamine in Mexico and destined for the United States crashed on the US border, but in so doing illustrated the way borders become far more permissive when a vehicle is an aerial drone. The drones that international traffickers repurpose as so-called blind mules to transport drugs across borders provide yet another way to circumvent more established law enforcement boundaries. The drones are not themselves illegal but of course trafficking is illegal and the third-party GPS autopilot device means that law enforcement cannot track even crashed drones back to the operator.48 As these examples illustrate, states are increasingly aware of the threats posed by the type of drone that has flown under the radar of international regulations but have yet to come up with effective countermeasures, though these are certainly under consideration.

 
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